Download Zipped Introduced WP 6.1 HB0079S1.ZIP 31,687 Bytes
[Status][Bill Documents][Fiscal Note][Bills Directory]
First Substitute H.B. 79
5 AN ACT RELATING TO HUSBAND AND WIFE; REQUIRING A COURT TO PROVIDE THE
6 BASIS FOR A CUSTODY DETERMINATION; PROVIDING SANCTIONS FOR
7 SUBSTANTIAL OR CHRONIC NONCOMPLIANCE WITH VISITATION ORDERS;
8 CREATING THE COURT-ORDERED EDUCATION COURSE ON VISITATION RIGHTS;
9 PROVIDING ALTERNATIVE SANCTIONS THE COURT SHALL CONSIDER;
10 AMENDING THE CHILDREN'S LEGAL DEFENSE ACCOUNT TO PROVIDE FUNDING
11 FOR IMPECUNIOUS PARTICIPANTS IN COURT-ORDERED MEDIATION OR
12 EDUCATION COURSES; REPEALING THE MANDATORY MEDIATION PILOT
13 PROGRAM AND RELATED PROVISIONS; MAKING NECESSARY AMENDMENTS;
14 AND PROVIDING AN EFFECTIVE DATE.
15 This act affects sections of Utah Code Annotated 1953 as follows:
17 30-3-5, as last amended by Chapter 330, Laws of Utah 1995
18 30-3-10, as last amended by Chapter 131, Laws of Utah 1993
19 30-3-15.3, as last amended by Chapters 98 and 158, Laws of Utah 1992
20 30-3-18, as last amended by Chapter 180, Laws of Utah 1993
21 63-63a-8, as last amended by Chapters 1 and 255, Laws of Utah 1996
22 78-32-12.2, as enacted by Chapter 152, Laws of Utah 1993
23 REPEALS AND REENACTS:
24 78-32-12.1, as last amended by Chapter 152, Laws of Utah 1993
25 78-32-12.3, as enacted by Chapter 152, Laws of Utah 1993
27 30-3-19, as enacted by Chapter 158, Laws of Utah 1992
1 30-3-20, as enacted by Chapter 158, Laws of Utah 1992
2 30-3-21, as enacted by Chapter 158, Laws of Utah 1992
3 30-3-22, as enacted by Chapter 158, Laws of Utah 1992
4 30-3-23, as enacted by Chapter 158, Laws of Utah 1992
5 30-3-24, as enacted by Chapter 158, Laws of Utah 1992
6 30-3-25, as enacted by Chapter 158, Laws of Utah 1992
7 30-3-26, as enacted by Chapter 158, Laws of Utah 1992
8 30-3-27, as enacted by Chapter 158, Laws of Utah 1992
9 30-3-28, as last amended by Chapter 260, Laws of Utah 1994
10 30-3-29, as enacted by Chapter 158, Laws of Utah 1992
11 30-3-30, as enacted by Chapter 158, Laws of Utah 1992
12 30-3-31, as enacted by Chapter 158, Laws of Utah 1992
13 Be it enacted by the Legislature of the state of Utah:
14 Section 1. Section 30-3-5 is amended to read:
15 30-3-5. Disposition of property -- Maintenance and health care of parties and
16 children -- Division of debts -- Court to have continuing jurisdiction -- Custody and visitation
17 -- Determination of alimony -- Nonmeritorious petition for modification.
18 (1) When a decree of divorce is rendered, the court may include in it equitable orders
19 relating to the children, property, debts or obligations, and parties. The court shall include the
20 following in every decree of divorce:
21 (a) an order assigning responsibility for the payment of reasonable and necessary medical
22 and dental expenses of the dependent children;
23 (b) if coverage is or becomes available at a reasonable cost, an order requiring the purchase
24 and maintenance of appropriate health, hospital, and dental care insurance for the dependent
26 (c) pursuant to Section 15-4-6.5:
27 (i) an order specifying which party is responsible for the payment of joint debts,
28 obligations, or liabilities of the parties contracted or incurred during marriage;
29 (ii) an order requiring the parties to notify respective creditors or obligees, regarding the
30 court's division of debts, obligations, or liabilities and regarding the parties' separate, current
31 addresses; and
1 (iii) provisions for the enforcement of these orders;
2 (d) provisions for income withholding in accordance with Title 62A, Chapter 11, Parts 4
3 and 5; and
4 (e) with regard to child support orders issued or modified on or after January 1, 1994, that
5 are subject to income withholding, an order assessing against the obligor an additional $7 per
6 month check processing fee to be included in the amount withheld and paid to the Office of
7 Recovery Services within the Department of Human Services for the purposes of income
8 withholding in accordance with Title 62A, Chapter 11, Parts 4 and 5.
9 (2) The court may include, in an order determining child support, an order assigning
10 financial responsibility for all or a portion of child care expenses incurred on behalf of the
11 dependent children, necessitated by the employment or training of the custodial parent. If the court
12 determines that the circumstances are appropriate and that the dependent children would be
13 adequately cared for, it may include an order allowing the noncustodial parent to provide child care
14 for the dependent children, necessitated by the employment or training of the custodial parent.
15 (3) The court has continuing jurisdiction to make subsequent changes or new orders for
16 the custody of the children and their support, maintenance, health, and dental care, and for
17 distribution of the property and obligations for debts as is reasonable and necessary.
18 (4) (a) In determining visitation rights of parents[
20 (b) Upon a specific finding by the court of the need for peace officer enforcement, the
21 court may include in an order establishing a visitation schedule a provision, among other things,
22 authorizing any peace officer to enforce a court ordered visitation schedule entered under this
24 (5) If a petition for modification of child custody or visitation provisions of a court order
25 is made and denied, the court shall order the petitioner to pay the reasonable attorneys' fees
26 expended by the prevailing party in that action, if the court determines that the petition was
27 without merit and not asserted or defended against in good faith.
28 (6) If a petition alleges substantial or chronic noncompliance with a visitation order by a
30 78-32-12.2 where a visitation right has been previously granted by the court, the court may award
31 to the prevailing party costs, including [
1 prevailing party because of the other party's failure to provide or exercise court-ordered visitation.
2 (7) (a) The court shall consider at least the following factors in determining alimony:
3 (i) the financial condition and needs of the recipient spouse;
4 (ii) the recipient's earning capacity or ability to produce income;
5 (iii) the ability of the payor spouse to provide support; and
6 (iv) the length of the marriage.
7 (b) The court may consider the fault of the parties in determining alimony.
8 (c) As a general rule, the court should look to the standard of living, existing at the time
9 of separation, in determining alimony in accordance with Subsection (a). However, the court shall
10 consider all relevant facts and equitable principles and may, in its discretion, base alimony on the
11 standard of living that existed at the time of trial. In marriages of short duration, when no children
12 have been conceived or born during the marriage, the court may consider the standard of living
13 that existed at the time of the marriage.
14 (d) The court may, under appropriate circumstances, attempt to equalize the parties'
15 respective standards of living.
16 (e) When a marriage of long duration dissolves on the threshold of a major change in the
17 income of one of the spouses due to the collective efforts of both, that change shall be considered
18 in dividing the marital property and in determining the amount of alimony. If one spouse's earning
19 capacity has been greatly enhanced through the efforts of both spouses during the marriage, the
20 court may make a compensating adjustment in dividing the marital property and awarding
22 (f) In determining alimony when a marriage of short duration dissolves, and no children
23 have been conceived or born during the marriage, the court may consider restoring each party to
24 the condition which existed at the time of the marriage.
25 (g) (i) The court has continuing jurisdiction to make substantive changes and new orders
26 regarding alimony based on a substantial material change in circumstances not forseeable at the
27 time of the divorce.
28 (ii) The court may not modify alimony or issue a new order for alimony to address needs
29 of the recipient that did not exist at the time the decree was entered, unless the court finds
30 extenuating circumstances that justify that action.
31 (iii) In determining alimony, the income of any subsequent spouse of the payor may not
1 be considered, except as provided in this subsection.
2 (A) The court may consider the subsequent spouse's financial ability to share living
4 (B) The court may consider the income of a subsequent spouse if the court finds that the
5 payor's improper conduct justifies that consideration.
6 (h) Alimony may not be ordered for a duration longer than the number of years that the
7 marriage existed unless, at any time prior to termination of alimony, the court finds extenuating
8 circumstances that justify the payment of alimony for a longer period of time.
9 (8) Unless a decree of divorce specifically provides otherwise, any order of the court that
10 a party pay alimony to a former spouse automatically terminates upon the remarriage of that
11 former spouse. However, if the remarriage is annulled and found to be void ab initio, payment
12 of alimony shall resume if the party paying alimony is made a party to the action of annulment and
13 his rights are determined.
14 (9) Any order of the court that a party pay alimony to a former spouse terminates upon
15 establishment by the party paying alimony that the former spouse is cohabitating with another
17 Section 2. Section 30-3-10 is amended to read:
18 30-3-10. Custody of children in case of separation or divorce -- Custody
20 (1) If a husband and wife having minor children are separated, or their marriage is declared
21 void or dissolved, the court shall make an order for the future care and custody of the minor
22 children as it considers appropriate. In determining custody, the court shall consider the best
23 interests of the child and the past conduct and demonstrated moral standards of each of the parties.
24 The court may inquire of the children and take into consideration the children's desires regarding
25 the future custody, but the expressed desires are not controlling and the court may determine the
26 children's custody otherwise.
27 (2) In awarding custody, the court shall consider, among other factors the court finds
28 relevant, which parent is most likely to act in the best interests of the child, including allowing the
29 child frequent and continuing contact with the noncustodial parent as the court finds appropriate.
30 (3) If the court finds that one parent does not desire custody of the child, or has attempted
31 to permanently relinquish custody to a third party, it shall take that evidence into consideration in
1 determining whether to award custody to the other parent.
2 (4) The court shall enter findings as to the underlying reasons for its award of custody.
3 Section 3. Section 30-3-15.3 is amended to read:
4 30-3-15.3. Commissioners powers.
5 Commissioners shall:
6 (1) secure compliance with court orders;
7 (2) require [
9 (3) require attendance at the mandatory [
10 30-3-11.3 and 78-32-12.1;
11 (4) serve as judge pro tempore, master or referee on:
12 (a) assignment of the court; and
13 (b) with the written consent of the parties:
14 (i) orders to show cause where no contempt is alleged;
15 (ii) default divorces where the parties have had marriage counseling but there has been no
17 (iii) uncontested actions under the Uniform Act on Paternity;
18 (iv) actions under the Uniform Civil Liability for Support Act; and
19 (v) actions under the Reciprocal Enforcement of Support Act; and
20 (5) represent the interest of children in divorce or annulment actions, and the parties in
21 appropriate cases.
22 Section 4. Section 30-3-18 is amended to read:
23 30-3-18. Waiting period for hearing after filing for divorce -- Exemption -- Use of
24 counseling and education services not to be construed as condonation or promotion.
25 (1) Unless the court, for good cause shown and set forth in the findings, otherwise orders,
26 no hearing for decree of divorce shall be held by the court until 90 days shall have elapsed from
27 the filing of the complaint, provided the court may make such interim orders as may be just and
29 (2) The 90-day period as provided in Subsection (1) shall not apply in any case where both
30 parties have completed the mandatory educational course for divorcing parents as provided in
31 Section 30-3-11.3 [
1 (3) The use of counseling, mediation, and education services provided under this chapter
2 may not be construed as condoning the acts that may constitute grounds for divorce on the part of
3 either spouse nor of promoting divorce.
4 Section 5. Section 63-63a-8 is amended to read:
5 63-63a-8. Children's Legal Defense Account.
6 (1) There is created a restricted account within the General Fund known as the Children's
7 Legal Defense Account.
8 (2) The purpose of the Children's Legal Defense Account is to provide for programs that
9 protect and defend the rights, safety, and quality of life of children.
10 (3) The Legislature shall appropriate money from the account for the administrative and
11 related costs of the following programs:
12 (a) implementing the Mandatory Educational Course on Children's Needs for Divorcing
13 Parents relating to the effects of divorce on children as provided in Sections 30-3-4, 30-3-7,
14 30-3-10.3, 30-3-11.3, 30-3-15.3, and 30-3-18[
16 (b) implementing the use of guardians ad litem as provided in Sections 30-3-5.2,
17 78-3a-912, 78-3a-318, 78-11-6, and 78-7-9; the training of guardian ad litems and volunteers as
18 provided in Section 78-3a-912; and termination of parental rights as provided in Sections
19 78-3a-516, 78-3a-518, 78-3a-903, and Title 78, Chapter [
20 used to supplant funding for the guardian ad litem program in the juvenile court as provided in
21 Section 78-3a-912;
22 (c) [
24 Section 78-32-12.1;
25 (d) enforcing [
27 provided in Section 78-32-12.2; and
28 (e) implementing and administering the [
29 Program as provided in Section 30-3-38.
30 (4) The following withheld fees shall be allocated only to the Children's Legal Defense
31 Account and used only for the purposes provided in Subsections (3)(a) through [
1 (a) the additional $10 fee withheld on every marriage license issued in the state of Utah
2 as provided in Section 17-5-214; and
3 (b) a fee of $2 shall be withheld from the existing civil filing fee collected on any
4 complaint, affidavit, or petition in a civil, probate, or adoption matter in every court of record.
5 (5) The Division of Finance shall allocate the monies described in Subsection (4) from the
6 General Fund to the Children's Legal Defense Account.
7 (6) Any funds in excess of $200,000 remaining in the restricted account as of June 30 of
8 any fiscal year shall lapse into the General Fund.
9 Section 6. Section 78-32-12.1 is repealed and reenacted to read:
10 78-32-12.1. Educational course on visitation rights -- Purpose -- Curriculum.
11 (1) There is established an Education Course on Visitation Rights for divorced parents or
12 grandparents, as provided in Section 30-5-2, in all judicial districts to be administered by the
13 Administrative Office of the Courts. The education course is designed to educate parents or
14 grandparents of the right to maintain a meaningful and ongoing relationship with the child through
15 the use of court-ordered visitation.
16 (2) Upon a finding that the defendant in a first petition is substantially or chronically
17 noncompliant with a visitation order as provided in Section 78-32-12.2, the court may order the
18 defendant to attend an Education Course on Visitation Rights.
19 (3) The course shall instruct the noncompliant parent about visitation rights and:
20 (a) the importance of visitation with their child or children;
21 (b) the need for meaningful contact to ensure a continuing relationship with the child or
22 children and both parents;
23 (c) the harmful impact of conflict between parents over visitation access; and
24 (d) the importance of complying with the court order.
25 (4) The Administrative Office of the Courts shall administer the course pursuant to Title
26 63, Chapter 56, Utah Procurement Code, through private or public contracts and implement the
27 course in each of the judicial districts. The contracts shall provide for recoupment of
28 administrative expenses through the costs charged to individual parties pursuant to Subsection
30 (5) The Judicial Council shall appoint a committee to oversee and monitor the education
31 course on visitation rights, whose membership shall include judges, court administrators,
1 attorneys, and members of the public.
2 (6) The state court administrator shall assign the responsibility to direct the course to an
3 administrator in the Administrative Office of the Courts.
4 (7) The course administrator shall establish uniform specifications and standards for the
5 curriculum and provision of the visitation rights education course, in consultation with the
7 (8) The Administrative Office shall issue a request for proposals to providers of visitation
8 rights education, setting forth the uniform established specifications and standards.
9 (9) The committee shall review the proposals submitted and make recommendations for
10 award of contracts.
11 (10) The program administrator, in consultation with the state court administrator and the
12 judges in each district, shall award the contracts.
13 (11) Each party ordered to attend the course shall contact the court or the course provider
14 and register to attend the course. No further notice of the date and time of the course need be
15 provided to any party.
16 (12) A certificate of completion constitutes evidence to the court of course completion by
17 the parties. The defendant shall file a copy of the certificate to the court within 90 days of the
18 court's order to attend the course. The course provider shall complete a certificate of completion
19 and provide the same to each party who:
20 (a) attends and completes the course;
21 (b) either pays the course fee or presents a copy of an Affidavit of Impecuniosity filed with
22 the court; and
23 (c) completes the course evaluation form.
24 (13) The course provider shall, within 72 hours of each course, provide the court with an
25 alphabetized list of each party who attended and completed the course.
26 (14) If a party does not attend the course within 45 days of having been notified of the
27 course requirement, the court may hold the party who did not timely attend in contempt or may
28 waive course attendance for good cause shown.
29 (15) The court may waive the attendance requirement at any time if it determines that
30 course attendance and completion are not necessary, feasible, or in the best interest of the parties.
31 (16) (a) Each attendee shall pay the costs of the course to the independent contractor
1 providing the course at the time and place of the course. A fee of $8 shall be collected as part of
2 the course fee paid by each attendee and deposited into the Children's Legal Defense Account as
3 provided in Section 63-63a-8.
4 (b) Each attendee who is unable to pay the costs of the course may attend the course
5 without payment upon a prima facie showing of impecuniosity as evidenced by an Affidavit of
6 Impecuniosity filed in the district court. In those situations, the independent contractor shall be
7 reimbursed for its costs from the appropriation to the Administrative Office of the Courts for the
8 Education Course on Visitation Rights.
9 (17) The appropriation from the Children's Legal Defense Account to the Administrative
10 Office of the Courts for the Education Course on Visitation Rights shall be used to pay the costs
11 of the indigent attendee who makes a showing as provided in Subsection (16)(b).
12 (18) The Administrative Office of the Courts shall adopt a program to evaluate the
13 effectiveness of the court-ordered education course on visitation rights. Progress reports shall
14 be provided annually to the Judiciary Interim Committee.
15 Section 7. Section 78-32-12.2 is amended to read:
16 78-32-12.2. Definitions -- Sanctions.
17 (1) For purposes of this section:
18 (a) "Make up visitation" means visitation which is:
19 (i) of the same type and duration of visitation as that which was denied, including
20 visitation during weekdays, weekends, holidays, and during extended visitation periods;
21 (ii) to be made up within one year after the court has entered its order of make up
22 visitation; and
23 (iii) in the manner chosen by the aggrieved parent if it is in the best interest of the child.
24 (b) "Mediation" means court-ordered participation by the parties with a mediator to pursue
25 mediation and settlement of visitation matters.
26 (c) "Parent" means a parent or grandparent as provided in Section 30-5-2 who is subject
27 to a visitation order pursuant to a divorce decree, separate maintenance decree, or death;
29 in Section 30-5-2[
30 that a parent is not complying with a visitation order in a decree of divorce or a subsequent
31 visitation enforcement order which may be brought at different stages in the alleged pattern of
1 chronic noncompliance:
2 (i) a first petition is a petition to enforce an original order of visitation or a petition filed
3 after three years from the last visitation enforcement order;
4 (ii) a second petition is a petition filed within three years following entry of the first
5 visitation enforcement order; and
6 (iii) a third petition is a petition filed within three years following entry of the second
7 visitation enforcement order.
9 (i) substantially or repeatedly interferes with a court-ordered visitation schedule; or
10 (ii) substantially or repeatedly interferes with a parent's right to frequent, meaningful, and
11 continuing access with his child and which [
13 original visitation order through the use of sanctions.
25 court [
26 Rights as provided in Section 78-32-12.1.
2 the court may order[
3 requirement to report back to the court on the results of mediation within [
4 (b) Each party who is unable to pay the costs of mediation may attend mediation without
5 payment upon a prima facie showing of impecuniosity as evidenced by an Affidavit of
6 Impecuniosity filed in the district court. In those instances, the mediator shall be reimbursed for
7 its costs from the Children's Legal Defense Account as provided in Subsection 63-63a-8(3).
14 noncompliance, the court [
15 interest of the child. There is no requirement to show a substantial change of circumstances under
16 this Subsection (4) before the court may order the temporary change of custody.
28 consider the following sanctions at any stage in any separate maintenance or divorce proceedings,
29 in subsequent petitions, or upon a finding of chronic noncompliance on any petition including:
30 (a) [
31 (i) pay costs including actual attorney fees and court costs to the prevailing party;
3 in [
7 results of mediation within 60 days;
8 (iv) comply with a contempt order which imposes a fine or jail sentence as provided in
9 Section 78-32-10; [
11 insure future compliance[
1 (vi) pay the actual costs of reimbursement for transportation, child care, or other related
2 expenses because of the other parent's noncompliance with the visitation order;
3 (vii) attend an Education Course on Visitation Rights as provided in Section 78-32-12.1;
5 (viii) comply with an order of a temporary change of custody; or
7 as provided in Section 76-5-303 and [
8 for prosecution.
13 notice of his intention to exercise the make up visitation at least seven days before the proposed
14 visit if it is to be on a weekday or weekend, and at least 30 days before the proposed visit if it is
15 to be on a holiday or an extended visitation period.
17 if substantial allegations of child abuse or child sexual abuse are under investigation or a case is
18 pending in the courts on the allegations.
20 and not asserted or defended against in good faith shall be subject to sanctions as determined by
21 the court.
24 Section 8. Section 78-32-12.3 is repealed and reenacted to read:
25 78-32-12.3. Education Course on Visitation Rights for violation of visitation order.
26 (1) Upon a finding by a preponderance of the evidence that a parent, as defined in Section
27 78-32-12.2, has substantially or chronically refused to comply with the minimum amount of
28 visitation ordered in a decree of divorce, the court may order the parent to attend an Education
29 Course on Visitation Rights to be educated about the importance of complying with the court order
30 and of providing a child a continuing relationship with both parents.
31 (2) If a noncompliant parent is ordered to attend this court-ordered education, there is a
1 rebuttable presumption that the compliant parent be granted visitation by the court to provide child
2 care during the time the noncompliant parent is complying with the education course order.
3 (3) The person ordered to participate in court-ordered education is responsible for expenses
4 as provided in Section 78-32-12.1.
5 Section 9. Repealer.
6 This act repeals:
7 Section 30-3-19, Purpose.
8 Section 30-3-20, Definitions.
9 Section 30-3-21, When referral to mediation is required.
10 Section 30-3-22, Waiver of mandatory mediation requirement.
11 Section 30-3-23, Initial mediation session.
12 Section 30-3-24, Mediation and compliance with requirement.
13 Section 30-3-25, Prohibited issues in mediation.
14 Section 30-3-26, Creation of mandatory mediation program -- Duties of director --
16 Section 30-3-27, Mediator qualifications.
17 Section 30-3-28, Mediation proceedings closed -- Information confidential -- Records
19 Section 30-3-29, Mediation agreement -- Order.
20 Section 30-3-30, Appropriation to pilot program to cover costs of impecunious
22 Section 30-3-31, Review of pilot program.
23 Section 10. Effective date.
24 The provisions of Section 63-63a-8, and Sections 78-32-12.1, 78-32-12.2, and 78-32-12.3
25 of this act shall take effect on July 1, 1997.
[Bill Documents][Bills Directory]